Judith Long v. General Motors Corporation

After a review of the entire record, as well as considering the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed. While I agree that employee was permanently and totally disabled, the greater portion of her disabilities pre-existed the September 22, 1997, work injury connected with employer. Therefore, such greater portion should have been attributed to the Second Injury Fund. Accordingly, the administrative law judge erred in assessing 100\% of the liability for employee's injuries against employer.

Section 287.220.1, RSMo reads, in part:

If the previous disability or disabilities . . . and the last injury together result in total and permanent disability, . . . the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself. . . .

In Vaught v. Vaughts, Inc./Southern Mo. Constr., 938 S.W.2d 931, 939 (Mo. App. S.D. 1997) (citations omitted) (reversed on other grounds in Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)), the court stated as follows:

[W]here a partially disabled employee is injured anew and rendered permanently and totally disabled, the first step in ascertaining whether there is liability on the Second Injury Fund is to determine the amount of disability caused by the new accident alone. The employer at the time of the new accident is liable for that disability (which may, by itself, be permanent and total). If the compensation to which the employee is entitled for the new injury is less than the compensation for permanent and total disability, then in addition to the compensation from the employer for the new injury, the employee (after receiving the compensation owed by the employer) is entitled to receive from the Second Injury Fund the remainder of the compensation due for permanent and total disability.

Thus, to place 100\% liability on employer, the administrative law judge in this case had to determine that employee's last injury on September 22, 1997, alone and of itself, caused employee's permanent total disability. The best evidence shows otherwise.

Employee suffered from known, preexisting, permanent, diagnosed, and measurable disabilities. It was clearly established that employee had preexisting permanent disabilities in her shoulders, arms, and hands. Prior to 1997, she had been involved in multiple, serious automobile and other accidents. Dr. Volarich, who testified on behalf of employee, noted the following pre-existing injuries and complaints:

In 1972 Ms. Long was involved in a motor vehicle accident. She was a passenger riding in the front, not wearing a seatbelt. She was involved in a head on collision. She was flung forward and her head hit the windshield. She tells me she had about 60 sutures in her face. She sustained a fracture of the left humerus. She was admitted to the hospital for a period of 2 weeks and her left arm was in a sling for 2 months.

In 1989 Ms. Long was the driver of her vehicle when she was involved in a motor vehicle accident. She rearended another vehicle. She was flung forward, sustaining injury to her neck and bilateral shoulders. She underwent an extensive physical therapy program for 3 to 4 months and she was off work for several years. [Emphasis added.]

. . . [L]eading up to 9/97 she had continuing difficulties with both shoulders. She tells me that she could not work overhead because of fatigue. She had occasional numbness and tingling in the left arm radiating from the shoulder down in toward the hand. She tells me that she did not use her arms away from her body or overhead. She was able to pick jobs that allowed her to keep her arms dependant when working. The shoulder injuries slowed her down and caused her pain leading up to 9/97.

In 1985 Ms. Long stepped into a hole in her yard. She twisted her right ankle and fell to the ground. She sustained a right ankle fracture. . . .

In 1992 or thereabout, . . . she slipped going down a flight of steps and twisted her left ankle. She was placed into an air cast for a period of 4 to 6 weeks.

In the mid 1990's, [employee] reports that she developed bilateral elbow tendonitis due to repetitive use of torque guns and air guns . . . . She reports that she would fell [sic] a pulling and tearing sensation in her elbows. . . .

Ms. Long reports that leading up to 9/97 she had ongoing pain in the elbows with repetitive activities. The pain would also wake her up about once a week as best she can recall. Her arms were weak . . . .

Repetitive use of the arms caused weakness and pain as well. The elbow injury slowed her down leading up to $9 / 97$.

1994 [employee] reports that she began to experience numbness and tingling in both hands and wrists. . . . She also developed a right wrist ganglion cyst, which was untreated.

During her automobile accidents, employee had struck her head against the windshield of her car, knocking her unconscious and causing memory loss. She also told Dr. Edwin Wolfgang that she had glass in her eyes and still has glass in her head.

She received psychiatric care during the period 1989 to 1992. "She was hospitalized for three weeks at the St. Joseph's Stress Center. She saw Dr. Suarez for a year after her discharge. A diagnosis of major depressive disorder and anxiety was established. She was treated unsuccessfully with anti-depressant medication. The medications were not helpful and caused many side effects. Her multiple medical and psychiatric problems kept her off work for three years." Following that, for the next two years, employer was laying off workers for business reasons. When employee finally returned to work, as noted above, she had to pick the work she could physically perform. She registered numerous complaints at employer's dispensary, including shoulder, wrist, and lumbar problems.

These disabilities "exist[ed] at the time the work-related injury was sustained and [were] of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed." Messex v. Sachs Elec. Co., 989 S.W.2d 206, 214 (Mo. App. E.D. 1999).

Probably the single most incapacitating component of employee's disabilities is her continuing psychiatric problems. Dr. Wolfgang, a board certified psychiatrist with many years experience, was the most credible witness concerning employee's psychiatric disabilities. He and Dr. Randolph both testified that employee's major depression pre-dated the September 1997 injury, was not work-related, and was probably caused by a chemical imbalance or the serious head injuries incurred in the two earlier automobile accidents. Employee also suffers from histrionic personality and dependent personality disorders.

Thus, once employee's pre-existing psychiatric and extremity disabilities are isolated from the September 1997 accident, it is clear that the injuries employee sustained in the September 22, 1997, work-related

accident, in and of itself, did not cause her to become permanently totally disabled.

The administrative law judge relied on the vague and somewhat contradictory responses that employee's vocational expert, Dolores Gonzalez, gave during her deposition to find to the contrary. During direct examination, employee's attorney asked Ms. Gonzalez the specific question of whether employee's being unemployable was "from her physical restrictions alone or [from a combination of both] her physical and her psychiatric limitations." Ms. Gonzalez' clear answer: "[I]t's from both." She acknowledged that many of the work restrictions that doctors have placed on employee relate to preexisting conditions.

During cross examination, Ms. Gonzalez was asked, "And in your evaluation, you're not making any determination as to what percentage or what part of her problems are preexisting and what are related to her most recent injury if I understand, correct?" She responded, "That's correct."

Nonetheless, during further questioning, she was asked a question full of hypotheticals and assumptions. She was asked to assume that employee could not stand for more than five or ten minutes (Dr. Volarich's report indicates only that employee should avoid remaining in a fixed position for more than about 30 minutes). She was also asked to assume that employee had to lie down throughout the work day (Dr. Volarich's report indicates only that employee should rest, which could include lying down, "when needed"). In response, Ms. Gonzalez speculated that these physical restrictions would render employee unemployable. Based on such response, the administrative law judge erroneously concluded that employee was unemployable "from the work related back injury alone."

Even claimant's witness, Dr. Volarich, found only a 30\% disability related to employee's September 1997 back injury. Dr. Randolph found that a 13\% disability related directly to employee's September 1997 injury. Accordingly, I am persuaded that 25 % of employee's permanent disabilities (only her low back problems) are attributable to the September 1997 accident and, thus, attributable to employer. The balance of employee's permanent total disability is due to preexisting disabilities and, thus, attributable to the Second Injury Fund.

Consequently, because the Commission majority has affirmed the administrative law judge in placing all liability on employer, I must respectfully dissent.

Alice A. Bartlett, Member

Employee: Judith Long

Injury No. 97-432101

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad \mathrm{n} / \mathrm{a}$

Employer: General Motors Corporation